Considering Duty in Take-Home Asbestos Exposure Cases

Transcription

1 Liberty University Law Review Volume 12 Issue 1 Article 8 January 2018 Considering Duty in Take-Home Asbestos Exposure Cases Jake Snow Follow this and additional works at: Recommended Citation Snow, Jake (2018) "Considering Duty in Take-Home Asbestos Exposure Cases," Liberty University Law Review: Vol. 12 : Iss. 1, Article 8. Available at: This Article is brought to you for free and open access by the Liberty University School of Law at DigitalCommons@Liberty University. It has been accepted for inclusion in Liberty University Law Review by an authorized editor of DigitalCommons@Liberty University. For more information, please contact scholarlycommunication@liberty.edu.

2 NOTE CONSIDERING DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES Jake Snow TABLE OF CONTENTS ABSTRACT I. INTRODUCTION A. Satterfield Gave Great Weight to Foreseeability Over Other Factors B. Approaches Taken by Other State Courts Foreseeability Focus Legal Relationship Focus Factor Balancing Approach Limiting Widespread Liability Judicial Reliance on State Legislature C. Secondary Source Approaches The Unwarranted Basis for Today s Asbestos Take-Home Cases Multi-Factored Judicial Test Solution II. FOCUSING ON FORESEEABILITY IN A MULTI-FACTORED BALANCING TEST BEST ADJUDICATES DUTY S ROLE IN COMMON LAW NEGLIGENCE ACTIONS A. Foreseeability First: Why Foreseeability Is Essential and Why Foreseeability Must be Considered First Foreseeability is a practical first step in analysis because it limits frivolous claims Examining foreseeability first does not create unlimited liability B. Public Policy Favors Accountability in Asbestos Litigation Federal regulations require managing asbestos exposure Limiting liability is not a policy consideration under the Restatement (Third) of Torts The legislature is the appropriate mechanism for limiting employer liability To God, Alana, Jeff, Wendy, Katie, Larry, Beverly, Fred, Lynn, and countless other family members, friends, and mentors, I say thank you. Each of my accomplishments are directly attributable to your loving support.

3 200 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 C. The Case Against Emphasizing Misfeasance/Nonfeasance Distinctions D. Legislation allows for courts to decide the existence and scope of duty more efficiently III. CONCLUSION ABSTRACT The National Institutes of Health ( NIH ) estimates that between 1940 and 1978 eleven million people were exposed to asbestos. 1 Unfortunately, asbestos usage was prevalent long before its harmful effects were discovered. Taking anywhere from twenty to fifty years to develop, up to 10% of people with prolonged exposure to asbestos contract mesothelioma. 2 Thought to be harmless, asbestos was often used as insulation in many buildings because of its fire resistant qualities. As a result, companies exposed their employees to asbestos on a daily basis for decades. Asbestos fibrous quality allows the mineral to embed itself in fabrics, including the fabrics of employees clothing. Workers exposed to asbestos, who went home with asbestos fibers embedded in their clothing, often accidently exposed their family members and others to asbestos. This take-home exposure to asbestos resulted in sickness and death for many people unaffiliated with the asbestos worker s company. Family members exposed to secondhand asbestos often file negligence actions against their loved ones employers. In these cases, the family member plaintiffs, often dealing with a fatal illness and a mountain of hospital bills through no fault of their own, typically allege that the employer negligently managed the toxin. Conversely, defendants, facing a hefty lawsuit from a remote plaintiff, frequently argue that they owed no duty to the plaintiffs because these plaintiffs never worked for them. As the saying goes, hard cases make bad law. The tension between plaintiffs with large losses and defendants with only remote responsibility creates complicated cases, and as a result, inconsistent law. In determining whether an employer owes a duty to a non-employee whose exposure to asbestos occurred off premises, state courts have applied different tests, thereby achieving wildly different results in cases involving substantially similar fact patterns. This Note proposes a multi-factored test that emphasizes the importance of foreseeability in duty determinations. In the first section it discusses the 1. ASBESTOS.COM, (last visited Jul. 27, 2017). 2. Id.

4 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES 201 case precedent that illustrates the various approaches utilized by courts around the nation. The second section describes the solutions explored by secondary sources. In the last section, this Note advocates for a modified version of the Satterfield v. Breeding Insulation Co. test. Like the test in Satterfield, this modified test will emphasize the importance of foreseeability as a necessary first step in duty analysis. However, unlike the Satterfield test, this modified test will not consider whether the conduct constitutes misfeasance or nonfeasance as a factor in determining whether companies owe third-party plaintiffs a duty of care in take-home exposure cases. Finally, although courts are (in many jurisdictions) without statutory authority on the matter, this Note takes the position that legislative action can solve this problem much more efficiently than judicial action. The legislature should direct the courts to consider certain factors rather than allowing them to create their own judicial balancing test. I. INTRODUCTION Numerous negligence claims involving take-home asbestos exposure were filed in the last twenty years. 3 With some variation, most of these cases follow a general fact pattern: Company B employs A. In the course of employment, A is exposed to asbestos fibers. These fibers attach to A s clothing, and he exposes family member C to the asbestos fibers somewhere outside the workplace. C develops mesothelioma and brings a suit to recover damages from Company B. Because mesothelioma is an asbestosrelated cancer, 4 causation and damages are usually not the primary concern, leaving the duty determination as the sole disputed issue. Accordingly, Company B frequently argues that it owes no duty to family member C, a third-party plaintiff, who was exposed to the asbestos off-site. Despite similar fact patterns in most cases, 5 courts have applied many 3. Sheila Doyle Kelley & Allison N. Fihma, United States: Recent Trends in Asbestos Litigation, MONDAQ, Recent+Trends+in+Asbestos+Litigation (last visited Oct. 15, 2016). 4. ASBESTOS.COM, (last visited Oct. 15, 2016). 5. See generally Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (Del. 2011); Miller v. Ford Motor Co. (In re Certified Question from Fourteenth Dist. Ct. App. of Tex.)., 740 N.W.2d 206, 209 (Mich. 2007); Boley v. Goodyear Tire & Rubber Co., 929 N.E.2d 448 (Ohio 2010); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008).

5 202 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 different tests to determine duty, consequently reaching wildly different results. 6 A. Satterfield Gave Great Weight to Foreseeability Over Other Factors. In Satterfield v. Breeding Insulation Co., twenty-four-year-old Amanda Satterfield died from mesothelioma. 7 Her estate tried to recover damages from her father s employer, Alcoa. 8 In many of its operations, Alcoa used asbestos. 9 In the 1930s, Alcoa became aware that asbestos is a highly dangerous substance and discovered that the air in its factories contained high levels of asbestos fibers and that its employees were being exposed to these fibers on a daily basis. 10 Later, in the 1960s, Alcoa learned that the family members of its employees were at increased medical risk due to their regular exposure to asbestos on employee clothing. 11 In 1972, the Occupational Safety and Health Administration ( OSHA ) released regulations that prohibited employees who had been exposed to asbestos from taking their work clothes home to be laundered. 12 These regulations notified all American businesses of the harmful effects of asbestos exposure. Ms. Satterfield s father, Doug Satterfield, worked at Alcoa after the OSHA regulations on asbestos were released. 13 His assignments resulted in daily exposure to high levels of asbestos dust and fibers, but Alcoa did not educate Mr. Satterfield about the risks associated with handling asbestos. 14 During Mr. Satterfield s time with Alcoa, Ms. Amanda Satterfield was born prematurely and spent the first three months of her life in the hospital. 15 Every day, Mr. Satterfield visited his daughter in the hospital immediately after work [while] wearing his asbestos-contaminated work clothes. 16 Accordingly, from the day of her birth, Ms. Satterfield was exposed to the asbestos fibers on her father s work clothes. 17 When Ms. Satterfield was 6. See generally Price, 26 A.3d at 162; Miller, 740 N.W.2d at 209; Boley, 929 N.E.2d at 448; Satterfield, 266 S.W.3d at Satterfield, 266 S.W.3d at Id. 9. Id. at Id. 11. Id. at Id. at See Satterfield, 266 S.W.3d at Id. 15. Id. 16. Id. 17. Id.

6 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES 203 diagnosed with mesothelioma, she filed suit against Breeding Insulation Company ( Breeding ) and Alcoa. 18 Following her unfortunate death at the young age of twenty-four, her father was substituted as plaintiff and voluntarily dismissed the claims against Breeding. 19 Alcoa, however, argued that it owed no duty to its employee s daughter. 20 After the trial court dismissed the claim, the Tennessee Court of Appeals reversed the dismissal. The Tennessee Supreme Court affirmed the appellate court s ruling. 21 In Satterfield, the issue was whether Alcoa owed a duty of reasonable care to Ms. Satterfield. 22 To resolve this matter, the court first looked to the distinction between misfeasance and nonfeasance. 23 The court, having determined that there was misfeasance in this case, heavily emphasized the importance of foreseeability in determining whether a defendant owed a duty to a plaintiff. 24 Only if the injury to the plaintiff was foreseeable could the defendant owe a duty to the plaintiff. 25 Then, after determining foreseeability, the Satterfield court sought to determine if there were any countervailing principles that prevented the defendant from owing a duty to the plaintiff. 26 The Satterfield court described two potential categories of negligence cases. In the first category, defendants [have] engaged in an affirmative act that created an unreasonable and foreseeable risk of harm to [the plaintiff]. 27 For cases in this category, the court considers whether countervailing legal principles or policy considerations warrant determining that [the defendant] nevertheless owed no duty [to the plaintiff]. 28 In the second possible category of cases, defendants are negligent by omission. 29 In these cases, the court looks to see whether there is the sort of special relationship... that gives rise to a duty. 30 Because 18. Id. 19. See Satterfield, 266 S.W.3d at Id. at Id. 22. Id. 23. Id. at See id. at Satterfield, 266 S.W.3d at Id. at Id. 28. Id. 29. See id. at Id.

7 204 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 duty is an essential element of all negligence claims, 31 the Satterfield court reasoned that Ms. Satterfield s claim would fail if Alcoa did not owe her a duty. 32 Generally, persons have a duty... to refrain from engaging in affirmative acts that a reasonable person should recognize as involving an unreasonable risk of causing an invasion of an interest of another or acts which involve[ ] an unreasonable risk of harm to another. 33 However, this general rule does not necessarily require that persons always act reasonably to secure the safety of others. 34 Instead, the general rule against engaging in unreasonably risky affirmative acts serve[s] a more limited role as restraints upon a person s actions that create unreasonable and foreseeable risks of harm to others. 35 Next, the Satterfield court elaborated on the distinction between misfeasance and nonfeasance. Misfeasance is active misconduct working positive injury to others, while nonfeasance constitutes passive inaction, such as a failure to take positive steps to benefit others, or [failing] to protect them from harm not created by any wrongful act of the defendant. 36 However, it is possible for omissions to be categorized as misfeasance. 37 After explaining the general duty to refrain from unreasonably risky acts, the Satterfield court noted that the no duty to act rule is not without exception. In cases where certain special relationships exist between the defendant and either the source of the danger or the person who is foreseeably at risk from the danger, [t]hese relationships create an affirmative duty either to control the person who is the source of the danger or to protect the person who is endangered. 38 After explaining its own view of the law, the court then compared the precedent established by other state courts. Some courts have held that there can be no liability in the absence of a special relationship between the 31. Satterfield, 266 S.W.3d at Id. 33. Id. (quoting RESTATEMENT (SECOND) OF TORTS 284, 302, (1965) (alterations in original)). 34. Id. 35. Id. 36. Id. at (quoting Francis H. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 56 U. PA. L.REV. 217, 219 (1908)). 37. Satterfield, 266 S.W.3d at Id. at (quoting RESTATEMENT (SECOND) OF TORTS 314A, B; 315 (1965)).

8 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES 205 plaintiff and the employer, 39 while others have held that employers commit misfeasance by operating their factories in such a way as to create an unreasonable risk of harm of asbestos exposure to those who came into contact with its employees. 40 The Satterfield court held that requiring a special relationship for there to be a duty would be misplaced under Tennessee tort law. 41 The court explained that [w]hether a case involves a simple automobile accident or a complicated toxic tort, Tennessee law currently provides that one owes a duty to refrain from engaging in conduct that creates an unreasonable and foreseeable risk of harm to others. 42 The Satterfield court further held that the case involve[d] a risk created through misfeasance. 43 The court emphasized that Alcoa was aware of the dangerous amounts of asbestos on its employees clothes, yet did not inform its employees that the materials that they were handling contained asbestos or of the risks posed by asbestos fibers to the employees or to others. 44 In addition, Alcoa dissuaded its employees from using on-site bathhouse facilities, and it failed to provide coveralls or to wash its employees work clothes at the factory. 45 These facts constituted misfeasance. The duty inquiry did not end after determining whether there was misfeasance or nonfeasance. 46 The Satterfield court next considered whether a duty existed, and if so, to what extent. 47 In determining the existence and scope of duty, the court considered public policy because the concept of duty is largely an expression of policy considerations. 48 Though public policy is important, the Satterfield court emphatically rejected any notion that the concept of duty is a freefloating application of public policy. 49 The court reasoned that because [i]n most cases today... the presence or absence of a duty is a given rather than a matter of reasoned debate, 39. See id. at 361 (citing Miller v. Ford Motor Co. (In re Certified Question from Fourteenth Dist. Ct. App. of Tex.), 740 N.W.2d 206, 222 (Mich. 2007)). 40. See id. at 362(citing Rochon v. Saberhagen Holdings, Inc., No I, 2007 WL (Wash. Ct. App. Aug. 13, 2007)). 41. Id. 42. Id. at Satterfield, 266 S.W.3d at Id. at Id. 46. Id. at Id. 48. Id. at (quoting Burroughs v. McGee, 118 S.W.3d 323, 329 (Tenn. 2003)). 49. Satterfield, 266 S.W.3d at 365.

9 206 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 discussion, or contention, 50 courts should turn to public policy for guidance when the existence of a particular duty is not a given or when the rules... are not readily applicable. 51 After noting the role public policy plays in determining the existence and scope of one s duty, the court listed eight factors that are useful for this public policy determination: (1) the foreseeable probability of the harm or injury occurring; (2) the possible magnitude of the potential harm or injury; (3) the importance or social value of the activity engaged in by the defendant; (4) the usefulness of the conduct to the defendant; (5) the feasibility of alternative conduct that is safer; (6) the relative costs and burdens associated with that safer conduct; (7) the relative usefulness of the safer conduct; and (8) the relative safety of alternative conduct. 52 Regarding foreseeability, the court analyzed Alcoa s knowledge of asbestos. Given that Alcoa knew of asbestos many dangers and chose not to inform its employees of these dangers, it was foreseeable that Ms. Satterfield would come into close contact with Mr. Satterfield s work clothes on an extended and repeated basis. 53 After determining that the risk of Ms. Satterfield being exposed to asbestos fibers was foreseeable, the court shifted its analysis to a balancing of the other factors. 54 The potential harm to Ms. Satterfield was great because of the risk of fatal illnesses caused by exposure to asbestos. 55 As for importance or social value of the activity engaged in by the defendant and usefulness of the conduct to the defendant, the court noted the social value of job creation and manufacturing useful products. 56 However, no connection between the allegedly negligent acts and Alcoa s ability to provide employment or manufacture useful products was found. 57 There was no demonstration that the sort of exposure to asbestos that is involved in this case is a largely 50. Id. 51. Id. 52. Id. 53. Id. at 367. The court also considered that Alcoa allegedly (1) failed to inform its employees that they were working with materials containing asbestos; (2) failed to provide its employees with or to require them to wear protective covering on their clothes; (3) actively discouraged its employees use of on-site bathhouse facilities for changing or cleaning. Id. 54. Satterfield, 266 S.W.3d at Id. at See id. 57. Id.

10 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES 207 unavoidable part of its manufacturing operations. 58 Considering whether alternative conduct was feasible, the court found that Alcoa could have greatly reduced the risk of asbestos exposure without undue burden. 59 The court stated that Alcoa had a duty to use reasonable care to prevent exposure to asbestos fibers not only to its employees, but also to those who came into close regular contact with its employees contaminated work clothes over an extended period of time. 60 Finally, the Satterfield court addressed the argument that Ms. Satterfield fell outside the proper scope of the class of persons to whom a duty is owed in cases of this sort. 61 Alcoa argued that recognizing Ms. Satterfield s claim would greatly expand the scope of employers duty, explaining as follows: [N]o principled basis exists to limit the duty to the members of the employee s immediate family living in the employee s house and thus that recognizing a duty to these family members will eventually result in the recognition of a duty with regard to babysitters, housekeepers, home repair contractors, and nextdoor neighbors. 62 While acknowledging the validity of Alcoa s concerns, 63 the court held that [p]ublic policy does not warrant finding that there is no duty owed to such persons. 64 Satterfield recognized the existence of a duty, relying upon the notion that the defendant had created a risk. 65 The court limited the class of persons to whom a duty is owed to persons who came into close and regular contact over an extended period of time with its employees work clothes. 66 Satterfield found this fair and proportional duty to be 58. Id. 59. Id. The risk of asbestos exposure [C]ould have been greatly reduced had Alcoa (1) provided basic warnings to its employees about the dangers of asbestos, (2) required safer handling of the materials containing asbestos, (3) provided coveralls to its employees, (4) required employees to change their clothes before leaving the workplace, (5) laundered its employees work clothes on site, or (6) encouraged its employees to use the on-site bathhouse facilities before leaving work. Satterfield, 266 S.W.3d at Id. at Id. at Id. at Id. 64. Satterfield, 266 S.W.3d at Id. at See id.

11 208 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 neither limitless nor impractical. 67 Accordingly, the Tennessee Supreme Court held that the trial court erred by awarding Alcoa judgment on the pleadings; it affirmed the appellate court s reversal of the trial court and remanded the case back to the trial court. B. Approaches Taken by Other State Courts Like the Tennessee Supreme Court, other state supreme courts heavily emphasized foreseeability, while others rejected the use of foreseeability in determining the existence of a duty altogether. However, each of the other courts differ from Satterfield to some degree regarding the importance it attaches to foreseeability in determining the existence and scope of one s duty to prevent take-home asbestos exposure to third parties. 1. Foreseeability Focus Many courts emphasize the importance of foreseeability in analyzing duty for take-home asbestos exposure cases. 68 In Rochon v. Saberhagen Holdings, Inc., the plaintiff s husband was exposed to asbestos during his employment, and he brought those asbestos fibers into their home on his clothing. 69 The plaintiff alleged that she inhaled those fibers while laundering her husband s clothing and as a result eventually developed mesothelioma. 70 Similar to the Tennessee Supreme Court, the Washington Court of Appeals in Rochon noted that [w]hether an affirmative duty to act exists depends upon many factors, including mixed considerations of logic, common sense, justice, policy, and precedent. 71 The Rochon court, like Satterfield, considered foreseeability to be part of the duty inquiry. 72 In Rochon, the court explained that [t]he most common and obvious [way for a legal duty to arise] is when a party takes an affirmative action that results in an unreasonable risk of harm to others. 73 The court noted that an act is 67. Id. at See generally Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1098 (Ill. 2012) (referring to foreseeability as a necessary factor to finding a duty ); Satterfield, 266 S.W.3d at 366 (noting foreseeability s paramount importance ); Rochon v. Saberhagen Holdings, Inc., No I, 2007 WL (Wash. Ct. App. Aug. 13, 2007) (remanding for discovery on foreseeability). 69. Rochon, 2007 WL , at * Id. 71. Id. 72. Id. (determining [w]hether harm is foreseeable is part of the duty inquiry ). 73. Id. at *2.

12 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES 209 only unreasonable... if a reasonable person would have foreseen the risk. 74 If this reasoning is to be followed, foreseeability is necessarily relevant to the determination of whether a duty exists. The Rochon court further analyzed whether, under the facts of the case, the defendant owed a duty to the plaintiff. 75 Its conclusion resembled the Satterfield court s in that it was the defendant s own affirmative acts operating its own factory in an unsafe manner that allegedly caused [the plaintiff s] illness, not either a failure to act or the act of a third party. 76 The court rejected an argument from the defendant that extending a duty to [the plaintiff] will expose employers to endless litigation. 77 Much like Satterfield, the Rochon court disagreed with this argument, 78 citing limiting factors such as the requirement for causation; 79 that the duty arises only regarding damage caused by the defendant s own affirmative acts; 80 and the role courts and juries can play in limiting duty 81 as reasons for disagreement. However, unlike the Satterfield court, 82 Rochon did not consider other factors that limit the scope of one s duty. 2. Legal Relationship Focus In Price v. E.I. DuPont de Nemours & Co., the Delaware Supreme Court focused its duty analysis on whether the conduct complained of was misfeasance or nonfeasance. 83 In Price, the plaintiff was exposed to asbestos fibers while living with her husband from 1957 to Her husband, who worked for DuPont, was exposed to the fibers at work, which caused the plaintiff to be repeatedly exposed to the fibers at home. 85 The plaintiff alleged that DuPont knew or should have known that the asbestos fibers 74. Id. 75. See Rochon, 2007 WL , at * Id. at * Id. at * See id. 79. See id. at *5 (stating that a general duty to act reasonably... will only extend to a victim if the victim proves that his or her injury was a foreseeable consequence of its actions ) (emphasis added). 80. See id. at 4. ( [T]he duty is only one to act reasonably to prevent injury from [defendant s] own risky acts, not to protect [plaintiff] from acts of third parties or from circumstances it did not create. ). 81. See Rochon, 2007 WL , at * Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 365 (Tenn. 2008). 83. Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, (Del. 2011). 84. Id. at Id.

13 210 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 would be transported. 86 The court determined that the conduct constituted nonfeasance. 87 Because the conduct constituted nonfeasance, the court required the plaintiff to allege that a special relationship existed between her and [the defendant] in order for [the defendant] to owe her a duty of care. 88 The court held that the plaintiff had not established any special relationship, and that accordingly, the defendant did not owe the plaintiff a duty Factor Balancing Approach In CSX Transp. Inc. v. Williams, four plaintiffs brought suit under Georgia negligence law, claiming that clothing exposure contributed to their asbestos-related disease. 90 The Georgia Supreme Court framed the issue as whether an employer owed a duty to third-party, non-employees who encounter asbestos-tainted work clothing at locations away from the workplace. 91 The court first considered whether CSXT owed a duty as an employer to a third-party. Although [u]nder Georgia statutory and common law, an employer owes a duty to his employee to furnish a reasonably safe place to work and to exercise ordinary care and diligence to keep it safe, 92 the plaintiffs were not employees of CSXT. Therefore, CSXT owed no specific duty to the plaintiffs. 93 Next, the court discussed duties beyond the scope of an employer s duty to provide a safe workplace. 94 In doing so, the court considered a combination of three factors: (1) whether there was an employer-employee relationship; 95 (2) whether there was misfeasance; 96 and (3) whether the exposure occurred at the workplace Id. at Id. at Id. at Price, 26 A.3d at CSX Transp., Inc. v. Williams, 608 S.E.2d 208 (Ga. 2005). 91. Id. 92. Id. at Id. 94. Id. at See id. ( The court in that case held the common law duty to provide employees with a safe workplace has not been extended to encompass individuals... who are neither employees nor employed at the worksite. ). 96. See Williams, 608 S.E.2d at 210 ( [W]here one by his own act... creates a dangerous situation, he is under a duty to remove the hazard or give warning of the danger.... However, these cases do not involve CSXT itself spreading asbestos dust among the general population, thereby creating a dangerous situation.... ). 97. See id.

14 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES 211 Relying on these factors, the Georgia Supreme Court held that Georgia negligence law does not impose any duty on an employer to a third-party, non-employee, who comes into contact with its employee s asbestos-tainted work clothing at locations away from the workplace Limiting Widespread Liability In the case of In re N.Y.C. Asbestos Litig., the Court of Appeals of New York considered whether the defendant, the New York City Port Authority ( NYCPA ), owed a duty to plaintiff-wife, who was injured by at-home exposure to asbestos dust that plaintiff-husband brought home on his work clothes. 99 The court listed several factors that courts traditionally balance to make duty determinations, 100 but ultimately sought to limit the potential expansion of liability. 101 In its analysis, the court rejected the notion that foreseeability defines duty. 102 The court, instead, considered foreseeability to be a factor that determines the scope of one s duty, but only after it has been determined that a duty exists. 103 The court then considered the plaintiff s arguments that the NYCPA owed a duty by virtue of its status as an employer. 104 Considering precedent from multiple jurisdictions, including CSX Transp., Inc. v. Williams, 105 the court held that an employer only owes a duty to provide a safe workplace to its employees. 106 The court then addressed the plaintiff s alternative claim that the NYCPA owed a duty of care due to its status as a landowner. The court noted that [a] landowner generally must exercise reasonable care, with regard to any activities which he carries on, for the protection of those 98. Id. at In re N.Y.C. Asbestos Litig., 840 N.E.2d 115, 116 (N.Y. 2005) Id. at 119 ( Courts traditionally fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability. ) See id. ( Thus, in determining whether a duty exists, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree; and discussing the specter of limitless liability as well as judicial resistance to expansion of duty. ) Id. ( Foreseeability, alone, does not define duty.... ) Id Id. at In re N.Y.C. Asbestos Litig., 840 N.E.2d at Id. at

15 212 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 outside of his premises. 107 However, the court suggested that the plaintiffs were, in effect, asking us to upset our long-settled common-law notions of an employer s and landowner s duties. 108 The court balked at the idea of the defendant owing the plaintiff-wife a duty, instead it suggested that a finding of duty in this case would create limitless liability Judicial Reliance on State Legislature In Boley v. Goodyear Tire & Rubber Co., the wife of an employee working with asbestos-containing materials sued Goodyear when she was diagnosed with malignant mesothelioma years after her husband had stopped working for the company. 110 The defendant moved for summary judgment, relying on an Ohio statute. 111 The statute provided that premises owners are not liable for any injury to any individual resulting from asbestos exposure unless that individual s alleged exposure occurred while the individual was at the premises owner s property. 112 The trial court entered summary judgment in favor of the defendant, 113 the appellate court affirmed, 114 and the Ohio Supreme Court affirmed. 115 Rather than engaging in complicated balancing tests and implicat[ing] [the] core principles of [state] tort law, 116 the Ohio Supreme Court adjudicated by applying Ohio s statutory scheme. In effect, the state legislature took the balancing of social policy out of the judicial branch s hands. Accordingly, the court was able to rely on canons of statutory construction to adjudicate rather than judicial balancing Id. at 121 (citing W. PROSSER & W. KEETON, THE LAW OF TORTS 57, at 387 (5th ed. 1984)) Id. at See id. ( This line is not so easy to draw, however.... [T]he specter of limitless liability is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship ); see also id. ( [W]e must consider the likely consequences of adopting the expanded duty urged by plaintiffs. ) Boley v. Goodyear Tire & Rubber Co., 929 N.E.2d (Ohio 2010) Id. at OHIO REV. CODE ANN (A)(1) (West) Boley, 929 N.E.2d at Id Id. at Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 354 (Tenn. 2008) See generally Boley, 929 N.E.2d at 452. (choosing a construction that [gave] such interpretation as will give effect to every word and clause in it... the legislative intent behind R.C (A) is apparent ).

16 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES 213 C. Secondary Source Approaches Secondary sources have differing views on the take-home exposure cases. While some have taken the view that take-home exposure cases have no merit, 118 others have created balancing tests The Unwarranted Basis for Today s Asbestos Take-Home Cases One solution proposed by secondary sources is that courts should take an approach similar to In re N.Y.C. Asbestos, 120 which seeks to limit liability in take-home cases. In The Unwarranted Basis for Today s Asbestos Take- Home Cases, the author s argument emphasizes causation and the probability that take-home asbestos exposure results in mesothelioma. 121 Finding the probability of developing mesothelioma to be low, 122 the author attacked the credibility of testifying plaintiffs experts that suggest low levels of take-home exposure can cause mesothelioma. 123 Instead, the author suggested that spontaneous disease is the real cause for most mesothelioma diagnoses. 124 Under the author s view, plaintiffs proceed beyond summary judgment too easily because experts routinely testify that any exposure can lead to the development of mesothelioma. 125 To solve this problem, the author proposed multiple solutions. First, considering the experts any exposure theories, the author suggested that courts should limit the duty owed by employers by including an outright restriction on duty beyond the immediate workplace. 126 Second, the author suggested that courts should 118. William L. Anderson, The Unwarranted Basis for Today s Asbestos Take-Home Cases, 39 AM. J. TRIAL ADVOC. 107, 129 (2015) Meghan E. Flinn, A Continuing War with Asbestos: The Stalemate Among State Courts on Liability for Take-Home Asbestos Exposure, 71 WASH. & LEE L. REV. 707, 746 (2014) See supra Section I.B Anderson, supra note 118, at (considering what the graph would have looked like had even the most minimal level of take-home asbestos fibers cause[d] spousal mesothelioma ) Id. at 115 ( Thus, the actual incidence of mesothelioma illustrates exactly how hard it is to develop mesothelioma from take-home exposures. The dose received really does matter. ) Id. ( Given this data, it is virtually certain that low levels of take-home, clotheswashing exposures do not cause mesothelioma, and plaintiff experts are incorrect when they so testify. ) Id. at See id. at Id. at 127.

17 214 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 consistently reject the any exposure theory and require plaintiffs to prove a causative dose consistent with epidemiology studies showing disease in exposed populations Multi-Factored Judicial Test Solution Another proposed solution includes a multi-factored test. Continuing War with Asbestos: The Stalemate Among State Courts on Liability for Take- Home Asbestos Exposure noted that while courts commonly hold four specific factors as important in duty analysis: the foreseeability of harm, the relationship between the parties, the burden that creating a duty will place on the defendant, and public policy considerations... [n]one of these factors alone suffices to establish a duty. 128 Accordingly, the author creates a test that combines the four factors, creating a flexible test that allows state courts to apply their own state law while respecting the policy considerations of the Restatement (Third) of Torts. 129 Finally, the article proposes that despite the flexibility of the judicial test, a legislative action could solve the take-home exposure problem much more effectively than the courts. 130 II. FOCUSING ON FORESEEABILITY IN A MULTI-FACTORED BALANCING TEST BEST ADJUDICATES DUTY S ROLE IN COMMON LAW NEGLIGENCE ACTIONS. The ideal test for adjudicating duty is a multifactor test that focuses on foreseeability as a threshold determination. Under this paradigm, foreseeability would be treated as an essential element necessary to prove the existence of a duty owed by the employer to the third-party plaintiff. Only after foreseeability is established should the court continue its analysis with other factors such as the existence of a legal relationship, the burden of preventing the harm, the possible magnitude of the potential harm or injury, the feasibility of alternative conduct, and the relative safety of that alternative conduct. Upon a finding of foreseeable injury, these other factors serve as a way for courts to determine the scope of this duty. They are only relevant if the court finds that the injury was foreseeable. Absent a finding of foreseeable 127. Anderson, supra note 118, at Flinn, supra note 119, at See id. at 751 ( Allowing for flexibility within the structure of a four-prong test ensures that a state can conform to its negligence jurisprudence while bringing an element of uniformity to duty analysis nationwide. ) See id. at

18 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES 215 harm, other factors need not be considered because there is no duty without foreseeability. Under this test, to prevail on a negligence claim, a plaintiff must show that the risk was foreseeable, but that showing is not, in and of itself, sufficient to create a duty. Instead, if [the court finds the risk foreseeable, it will] then undertake the balancing analysis. 131 Much like Satterfield s test, this multi-step analysis may involve a balancing of several factors, but, unlike Satterfield, this test will not distinguish between misfeasance and nonfeasance. Although there is a distinction between misfeasance and nonfeasance, 132 this distinction has been given too much power in other tests. Furthermore, this test expressly rejects no duty findings for the purpose of avoiding the specter of limitless liability. This is not to say that public policy may not limit one s duty, but rather that a court seeking to limit duty on public policy grounds must refer to some specific public interest or policy that would be furthered by finding no duty. A. Foreseeability First: Why Foreseeability Is Essential and Why Foreseeability Must be Considered First There are many policies that can be considered when determining whether a duty exists, 133 but above all, foreseeability should be treated as a necessary element of duty. However, foreseeability alone is insufficient to create a duty. 134 Rather, foreseeability should be considered first as a threshold issue. 1. Foreseeability is a practical first step in analysis because it limits frivolous claims. Examining foreseeability first can help courts limit the number of frivolous claims in asbestos litigation. The United States Supreme Court has noted [that there is an] elephantine mass of asbestos cases. 135 Most 131. Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 366 (Tenn. 2008) In cases of misfeasance, the defendant has created a new risk of harm to the plaintiff, but in cases of nonfeasance, he has at least made his situation no worse, and has merely failed to benefit him by interfering in his affairs. Satterfield, 266 S.W.3d at See generally Chaisson v. Avondale Indus. 947 So. 2d 171, 182 (La. Ct. App. 2006) Campbell v. Ford Motor Co., 206 Cal. App. 4th 15, 31 (2012), as modified on denial of reh g (June 19, 2012) (quoting Erlich v. Menezes, 21 Cal. 4th 543, 552 (1999)) ( [F]oreseeability alone is not sufficient to create an independent tort duty. ); Miller v. Ford Motor Co. (In re Certified Question from Fourteenth Dist. Ct. App. of Tex.), 740 N.W.2d 206, 212 (Mich. 2007) ( [T]hat the harm was foreseeable is also not dispositive. ) Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 369 (Tenn. 2008) (quoting Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999)).

19 216 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 asbestos claims result from attorney-sponsored mass screenings and involve plaintiffs with little or no asbestos-related impairment. 136 With so many claims, some of them frivolous, it is important that courts find a way to efficiently adjudicate these cases without unjustly excluding meritorious claims. By treating foreseeability as the threshold element of duty analysis, courts can quickly eliminate factually deficient cases at summary judgment. 137 If faced with a case where the harm was not foreseeable, a court could rule in favor of the defendant on the issue of duty without resorting to a jury. 138 This approach allows courts to categorically remove cases in which the harm was not foreseeable, without dismissing valid claims unnecessarily. A claim dismissed for lack of foreseeability is dismissed for good cause. 139 Likewise, a case featuring foreseeable injury deserves further analysis on the duty issue. Although not universally accepted, 140 the idea of addressing foreseeability first is shared among many jurisdictions, even those that give substantial weight to other factors. For example, the Supreme Court of Michigan, despite its reliance on the relationship of the parties, noted that [w]hen the harm is not foreseeable, no duty can be imposed on the defendant. But when the harm is foreseeable, a duty still does not necessarily exist. 141 Likewise, the Supreme Court of Illinois understands foreseeability to be essential to duty determinations. Though foreseeability is not the only factor we consider, it is a necessary factor to finding a duty. If the injury was not reasonably foreseeable, no duty can exist. 142 By giving foreseeability such heavy emphasis and by utilizing foreseeability as a necessary starting point, this test reflects the common value shared by multiple state courts and the Restatement (Third) of Torts Mark A. Behrens & Phil Goldberg, The Asbestos Litigation Crisis: The Tide Appears to Be Turning, 12 CONN. INS. L.J. 477, 477 (2006) Flinn, supra note 119, at Id. at See Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1098 (Ill. 2012) ( Though foreseeability is not the only factor we consider, it is a necessary factor to finding a duty. If the injury was not reasonably foreseeable, no duty can exist. ) See generally In re N.Y.C. Asbestos Litig., 840 N.E.2d 115, 119 (N.Y. 2005) (explaining that foreseeability is only used after duty is determined) Miller v. Ford Motor Co. (In re Certified Question from Fourteenth Dist. Ct. App. of Tex.), 740 N.W. 2d 206, 212 (Mich. 2007) Simpkins, 965 N.E.2d at RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL AND EMOTIONAL HARM 3 (AM. LAW INST. 2010) ( Primary factors to consider in ascertaining whether the person s conduct lacks reasonable care are the foreseeable likelihood that the person s conduct will result in

20 2017] DUTY IN TAKE-HOME ASBESTOS EXPOSURE CASES Examining foreseeability first does not create unlimited liability. Some defendants argue that companies will be exposed to enormous financial burden if exposed to liability for illnesses caused by exposure to asbestos fibers in the manufacturing process. 144 This argument is unpersuasive for three reasons. 145 First, from a logical perspective, a principle of law that emphasizes foreseeability does not create a new and endless stream of plaintiffs via stare decisis; it merely focuses on particularized circumstances in a particular case. Though two separate cases may both involve foreseeable harm, these two cases may have factual differences. These factual differences may include the availability of alternative conduct to a given defendant, or perhaps the social utility the defendant s conduct. Second, the structure of the negligence cause of action, as well as the test for which this Note advocates, requires plaintiffs to prove much more than mere foreseeability. Simply emphasizing foreseeability does not cause widespread liability. 146 Third, because of the structural safeguards inherent in the negligence cause of action, any potential expansion of liability arising out of an emphasis on foreseeability is not unjust. 147 A court does not broaden liability by emphasizing foreseeability, nor does a court broaden liability by considering foreseeability first. Consider Olivo v. Owens-Illinois, Inc.; there, the court suggested that public policy concerns about the fairness and proportionality of [a duty arising out of foreseeable risk] should dissipate 148 because [t]he duty... recognize[d] in these circumstances is focused on the particularized foreseeability of harm to plaintiff s wife. 149 The Olivo court is not alone in making this assertion. 150 In fact, the idea that finding a duty to third parties in take-home exposure cases would create limitless liability seriously overstates what the consequences of harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. ) See Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 371 (Tenn. 2008) (Defendant suggests that manufacturers who use materials containing asbestos in their manufacturing process will face enormous financial burdens if they are exposed to liability for illnesses caused by exposure to asbestos fibers in their manufacturing processes. ) Id. ( We find this argument unpersuasive. ) See Satterfield, 266 S.W.3d at 375; Rochon v. Saberhagen Holdings, Inc., No I, 2007 WL at *4 (Wash. Ct. App. 2007) See Rochon, 2007 WL , at * Olivo v. Owens-Ill., Inc., 895 A.2d 1143, 1150 (N.J. 2006) Id Satterfield, 266 S.W.3d at 375; Rochon, WL , at *4.

21 218 LIBERTY UNIVERSITY LAW REVIEW [Vol. 12:199 imposing a burden on defendant would truly be. 151 [The question of duty in each case] asks whether this defendant should be found to have a duty owed to [plaintiff]. Thus, the potential burden must be examined in this limited context, not extrapolated to all other imaginable potential litigants. 152 As the Chaisson court stated, limitless liability would not be created in this case if we found a duty under these particular facts and circumstances. 153 Because each case is decided upon particular facts and circumstances presented by the parties, it logically follows that any expansion of liability would only expand liability to those cases that have similar facts and circumstances. 154 Courts arriving at similar results after applying a set of factors to similar facts are not expanding liability, they are merely upholding stare decisis. 155 Thus, an argument that suggests the defendant owed no duty in order to prevent limitless liability rests on one of two premises: either the argument incorrectly suggests that stare decisis would result in liability in dissimilar cases; or that it would be financially unfair to hold a particular defendant liable. The first of these premises is inconsistent 151. Miller v. Ford Motor Co. (In re Certified Question from Fourteenth Dist. Ct. App. of Tex.), 740 N.W.2d 206, 225 (Mich. 2007) (Cavanagh, J. dissenting) Id Chaisson v. Avondale Indus., 947 So. 2d 171, 182 (La. Ct. App. 2006) There are factual scenarios that could easily be outcome determinative on many different factors. For example, a plaintiff s contact with the asbestos may not be regular, repeated, or over a sufficient period such that his injury was foreseeable. See Satterfield, 266 S.W.3d. at 374 ( [T]he duty we recognize today extends to those who regularly and repeatedly come into close contact with an employee s contaminated work clothes over an extended period of time.... ). It is also possible that a plaintiff s injury is completely foreseeable, and yet preventing the injury would have been too great a burden on the defendant. See id. at 368 (considering whether defendant articulated a connection between its allegedly negligent acts and its ability to provide employment or produce useful products, as well as whether defendant took reasonable steps to prevent exposure such as requiring employees to change clothes before leaving the workplace, laundering work clothes on site, or encouraging employees to shower before leaving work) Upholding stare decisis has value: It would therefore be extremely inconvenient to the public if precedents were not duly regarded, and pretty implicitly followed. It is by the notoriety and stability of such rules, that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy, and to trust, and to deal with each other. 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 443 (1826).